USCA1 Opinion

May 3, 1996
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-2265

UNITED STATES,

Appellee,

v.

ELIZABETH MOGAJI,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Chief U.S. District Judge]

_________________________

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________

____________________

Elizabeth I. Mogaji on brief pro se.

___________________
Sheldon Whitehouse, United
__________________

States Attorney, and James H. Leav

______________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
__________

was convicted of

Defendant-appellant Elizabeth

one count

of conspiracy

to commit

Mogaji

credit

card

fraud

devices.

and five

counts

See 18 U.S.C.
___

of

fraudulent

1029(a)(2).

use of

access

She raises a number of

issues on appeal, all of them meritless.

1.

Motion to Suppress.
__________________

Defendant

argues that

the

district court

should

have suppressed the contents of the two plastic bags found by

Pamela McCutcheon

Agent James

and turned over to

Mooney.

The government

defendant has no standing

did not

have

a reasonable

common basement area of the

Secret Service Special

correctly responds that

to contest the search

expectation

because she

of privacy

in

the

duplex at 10-12 Stamford Avenue;

nor does the fact that defendant's driver's license was found

in one of the bags

make a difference.

See United States v.

___ ______________

Thornley, 707
________

F.2d 622, 625

(1st Cir. 1983)

(defendant may

not protect himself against discovery of an item by taking it

from his

has no

own premises and hiding

legal interest).

it in a place

Further, defendant did

ownership of anything in the plastic

hearing

of

not assert

bags at the suppression

-- the time at which defendant must carry her burden

showing a

Aguirre,
_______

in which he

839

privacy

F.2d

defendant plainly has

expectation.

854,

856

(1st

See
___

Cir.

United States
_____________

1988).

no standing to contest

Judgment of Acquittal.
_____________________

-3-

Because

the search, we

need not address defendant's credibility arguments.

2.

v.

Defendant

evidence

to find

indictment.

argues

her guilty

that

there

of any

of

rational

insufficient

the counts

in the

We will address these arguments by count, ending

with Count One, the conspiracy charge.

to the

was

sufficiency of

jury could

United States v.

the evidence

find guilt

We review

challenges

to determine

whether a

beyond a

Flores-Rivera, 56 F.3d

reasonable doubt.

319, 323 (1st

Cir.

_____________

1995).

In

reasonable

_____________

so doing,

we examine

inferences, in

prosecution.

Id.
___

the light

17 (1st

not

most favorable

to the

to exclude every reasonable theory

United States v. Batista-Polanco, 927 F.2d 14,

_____________
_______________

Cir. 1991).

evaluate

along with

The evidence may be circumstantial and the

prosecution does not have

of innocence.

the evidence,

"Furthermore, the

witness

credibility,

credibility issues in favor

reviewing court does

but

of the verdict."

resolves

all

Flores-Rivera,
_____________

56 F.3d at 323.

The

above

principles

dispose

of

defendant's

assertions that many of the witnesses lied on the stand.

have reviewed

the trial

transcript and conclude

We

that these

challenges go

As

instead to

such, we will not

regard.

the credibility of

revisit the jury's

the witnesses.

evaluation in this

See id.
___ ___

(a).

Count Two.
_________

This count charges defendant

and Onyejekwe with using a Chase Manhattan Mastercard

name of Raymond Walters

to purchase two checks in

-4-

in the

the total

amount of $10,150

first argues

that

in violation of

none of

the

1029(a)(2).

exhibits submitted

Defendant

by

the

government in relation to this charge showed that she had any

involvement in procuring these checks.

being charged as part

of a conspiracy.

However, defendant is

Under

the Pinkerton
_________

doctrine, Pinkerton v. United States, 328 U.S. 640

_________
_____________

(1946), a

member of a conspiracy may be held liable for the substantive

crimes committed by co-conspirators if the substantive crimes

were

committed in

furtherance of

defendant was a member

the conspiracy

of the conspiracy.

Flores-Rivera, 56 F.3d at 324.

_____________

and while

United States v.
______________

We think that a

rational jury could have found

beyond a reasonable doubt that Onyejekwe used the Raymond

P.

Walters Mastercard in furtherance of the conspiracy and while

defendant

was

part

of

the

Onyejekwe and defendant were

in

the name of Beverly

was carrying a

birth

dates

conspiracy.

list of names.

On

for

10, 1991, Onyejekwe

this list appeared names,

both

Onofrio and

Further, the use

of the Walters Mastercard occurred

May

1991

to

June of

occasions on

--

when

arrested for using a Mastercard

Onofrio on July

and addresses

First,

only a

month

which defendant and Onyejekwe

Mastercard at the Lechmere stores.

prior

Walters.

in mid-

to the

two

used the Onofrio

The jury could reasonably

infer, we think, that the use of both the Onofrio and Walters

Mastercards occurred as part of one conspiracy.

-5-

Second,

we believe

the evidence

supports the

conclusion that defendant was a participant in the conspiracy

when Onyejekwe used

is

that one

plainly did

the Walters Mastercard.

who joins an

ongoing conspiracy,

The common law

as defendant

on July 6 and 10, "is deemed to have adopted the

prior acts and declarations of coconspirators, made after the

formation

States
______

v.

and in

furtherance

Cintolo,
_______

818

F.2d 980,

denied, 484 U.S. 913 (1987).

______

and Onofrio appeared on

of the

conspiracy."

997

(1st

Cir.), cert.
_____

Given that the names of Walters

the list Onyejekwe was

day defendant was arrested,

United
______

carrying the

there was sufficient evidence to

convict defendant on Count Two.

(b).

of

Count Three.
___________

Beverly Onofrio's

Mastercard at

July 6 and 10, in 1991.

#12, a photocopy

of a

influence the jury.

This count concerns the use

the Lechmere

Defendant first argues

Lechmere sales slip,

stores on

that Exhibit

was altered

She contends that one order

to

number was

written over

another and that the employee number, 1034, was

handwritten, when the

employee

copy

order

sales slip,

number

assertion

is to have

number pre-stamped on the sales slip.

of the

employee's

usual Lechmere custom

--

however, we

0061903.

number, there is

that Lechmere's

As

for

nothing to

"usual

printed number.

-6-

Looking at a

can discern

the

the

only one

writing

of

the

support defendant's

practice" was

to have

Defendant next attacks the photo identification

procedure

by which Alex Shtutin -- the Lechmere sales person

who sold the

July 6 --

telefax machines to defendant

identified defendant.

tell, defendant

identification

object

never filed a

prior to

motion to suppress

in fact,

to Shtutin's testimony at

requirements of

exclude

However, as far as

trial;

pretrial photo identification

Fed. R.

trial.

the photo

she did

We

we can

not even

have held that

procedures are subject to

Crim. P.

such evidence must be

and Onyejekwe on

12(b)(3)

made prior to

and motions

trial.

the

to

United
______

States v. Gomez-Benabe, 985 F.2d 607, 611-12 (1st Cir. 1993).

______
____________

Given Gomez-Benabe,
____________

given

we think

that defendant, by

not having

the district court a chance to determine if she should

be excused

from filing

a pretrial

motion to

suppress, has

waived her right to challenge the identification procedure on

appeal.

(c).

Counts Four and Five.

______________________

concern, respectively,

during June 21, 1991

Onofrio's

of

AT&T Universal

Mastercard

counts

Onofrio's Discover

through June 25, 1991,

through July 24, 1991.

with

the use

These

during

and the use

June 26,

Card

of

1991

Defendant correctly notes, as she did

respect to Count Two, that there was no direct evidence

that she ever used

either card.

Thus, under

Pinkerton, the
_________

government was required to prove that the use of the Discover

Card

and the

AT&T Universal

Mastercard, during

the period

-7-

from

June 21,

Onyejekwe

in

1991

to July

furtherance

24, 1991,

of

the

was carried

conspiracy

defendant was involved in the conspiracy.

and

out by

while

See Flores-Rivera,
___ _____________

56 F.3d at 324.

In regard

to Count Four, the

evidence is that

the Discover Card was found in Onyejekwe's possession when he

was arrested on

July 10, and that Onofrio's

list of names Onyejekwe was carrying.

name was on the

Defendant argues that

she was in the hospital during the time the Discover Card was

used.

However, absent any claim that she had withdrawn from

the conspiracy,

during

the fact

her co-conspirator's

United States
_____________

v. Juodakis,
________

1987) (per curiam).

not

that defendant was

enough to

take some

actions is

834

somewhere else

not relevant.

F.2d 1099,

1102 (1st

See
___

Cir.

Cessation of activity in a conspiracy is

show withdrawal;

affirmative

act

rather, a

such as

full

conspirator must

confession

to

authorities or a communication to a co-conspirator that he or

she

is withdrawing from the enterprise.

Id.
___

Defendant does

not allege the existence of such circumstances here.

As for

Count Five,

the AT&T Universal Mastercard never

defendant points

out that

was recovered.

She also

argues that there is no evidence connecting her to the use of

the

AT&T card.

sufficient

We

basis on

First, the question

do not

think that

which to

is not only
___

-8-

either ground

overturn the

is a

jury's verdict.

whether defendant used

the

AT&T card, but also whether Onyejekwe might have used it.
_________

this regard,

we note that the

June 1991 and was

Onyejekwe

Because

were

the

Onofrio's

rationally

applied for in

used during the same period

using the

evidence

name

AT&T card was

is

so

could find

Universal Mastercard.

other

linking

strong,

that

cards

defendant and

in Onofrio's

Onyejekwe

to

we

that

think

Onyejekwe

In

the

name.

use

of

the

jury

used Onofrio's

AT&T

(d).

Count Six.
_________

with using a Mastercard

and

Althea

teller

withdraw

L. Medeiros

money from

evidence

of the person

card in question.

rented

to

The government's

part, of photographs

the

in the names of Leonard

V. Medeiros

machines.

This count charged defendant

automated

consisted, in

who withdrew money

with

McCutcheon had testified that she had

half of the duplex

at 10 Stamford

Ave. to defendant

who told McCutcheon that she (defendant) was Althea Medeiros.

McCutcheon identified defendant as the person in the picture.

Defendant

not

have

been admitted

blurry for identification

argues

that the

in evidence

purposes.

McCutcheon's identification of her

with the other photo

photographs should

because they

As a result,

was suspect.

were too

she adds,

However, as

identification, defendant never filed a

motion

to

suppress the

photographs.

waived an appellate challenge to them.

F.2d

at

611-12.

In

any

event,

Therefore, she

has

See Gomez-Benabe, 985

___ ____________

defendant's

arguments

-9-

concerning McCutcheon's testimony

really go to

credibility.

Thus, we need not

review her claims.

See
___

Flores-Rivera, 56
_____________

F.3d at 323.

(e).

Count One.
_________

Count

one charged defendant

with conspiracy to commit credit card fraud.

some

of the same arguments in support of her contention that

the government failed

Onyejekwe as

the

conspiracy between her

and

she made in regard to Counts Two and Four.

For

reasons stated

to show a

in the

defendant's arguments,

Four and Five

she

discussion regarding

first, that

the acts in

took place prior to July 10

only was present in the

fail.

no

Defendant makes

Count Two,

Counts Two,

and, second, that

Lechmere parking lot on July 10

Similarly unavailing are the arguments that there

was

evidence that defendant ever used a credit card or helped

Onyejekwe use a

credit card,

that defendant's

were not found on any cards, and that no cards

her person.

Under

Pinkerton, defendant is
_________

fingerprints

were found on

responsible for

the reasonably foreseeable offenses committed by Onyejekwe in

furtherance of the conspiracy

conspiracy

during the

since she was a member

relevant time

Rivera, 56 F.3d at 324.

______

periods.

of the

See Flores___ _______

The uses of the various credit cards

by Onyejekwe clearly were foreseeable.

3.

Denial of Cross-Examination.
___________________________

Defendant argues

prevented from conducting

that on three

occasions she

cross-examination that would

-10-

was

have

revealed the biases and

perjured testimony of the witnesses.

However,

the transcript

decided to

review

of

withdraw the questions to

and that there

is no evidence

shows

that

counsel

which defendant refers

that either the court

or the

government "prevented" defendant from cross-examining anyone.

Thus,

this issue,

being

fact-based, must

ineffective assistance claim

in a motion

be raised

as an

under 28 U.S.C.

2255.

See United States v.

___ ______________

1297 (1st

Cir. 1993)

Georgacarakos, 988
_____________

F.2d 1289,

(an ineffective assistance

of counsel

claim which involves issues not fully

record is

reason,

not ripe for

we

will

decision on

not consider

developed in the trial

appeal).

defendant's

For

the same

other arguments

relating to allegedly ineffective assistance of counsel.

4.

Improper Jury Instruction.

_________________________

Defendant complains that the trial

instruct

prove

the jury

that she

that

1029 requires

"actually

used" an

obtain something of value.

below,

McGill,

we

review for

952

F.2d

16,

judge failed to

the

government to

unauthorized device

to

Because defendant never objected

plain error.

17

(1st

See United States v.

___ ______________

Cir.

1991).

The

jury

______

instructions plainly

reveal that

the trial

judge correctly

instructed the jury that, as Pinkerton holds, defendant could

_________

be found guilty of fraudulent use of an access

jury found

that another's use of

the conspiracy,

that such

such a device

use was a

-11-

device if the

was part of

reasonably foreseeable

consequence

member of

of

the conspiracy,

the conspiracy

and

when the

that

defendant was

device was used.

As

result, there was no plain error.

Defendant's second argument is that the trial judge

improperly used the word "conspirators" in reciting the overt

acts charged in the indictment.

substituted

the

word

defendants,

Christopher

Essentially, the trial judge

"conspirators"

Onyejekwe

for

and

the

words

Elizabeth

"the

Mogaji."

Thus, as to the first overt act, the judge stated that "on or

about

July 6,

Lechmere. . . ."

the

jury

1991,

conspirators purchased
____________

merchandise at

Defendant alleges that this communicated to

the trial

judge's

belief

that she

was

guilty.

Again, there is no plain

instructed

the jury

error here.

that the

The trial

indictment was

court judge

not proof

of

anything and clearly defined what elements were necessary for

the jury to

find that

The judge also

defendant was part

instructed the

of a

jury that he

conspiracy.

had no

opinion

concerning the facts.

5.

Motion to Recuse.
________________

Defendant argues that Judge Boyle, the trial judge,

should have

recused himself

against defendant.

guilt

She

due to

his bias

and prejudice

claims that he was convinced

from the beginning.

This claim, in

of her

part, arose when

defendant and her lawyer allegedly heard Judge Boyle state at

a bail

reconsideration hearing that there

"was a conspiracy

-12-

among you people."

on

Judge

Defendant also rests her recusal argument

Boyle's post-trial

threat

that

he would

strike

defense counsel's name from the court-appointment list.

As for the first comment, it does not appear in the

transcript of the bail reconsideration hearing.

court

reporter

reviewed

the

tape recording

Further, the

of

the

bail

reconsideration

authenticity.

hearing

and

litigant, knowing

and

decide whether

transcript's

waived this issue

to file a motion

In re Abijue Realty Corp., 943 F.2d

__________________________

1991) (a

wait

the

In any event, defendant has

by waiting until after trial

_____

See
___

verified

of a ground

he

or

for

recusal.

121, 126 (1st Cir.

for recusal

she likes

the

cannot

subsequent

treatment he or she receives).

The second

comment, unlike the first,

directed at defendant.

reveals

that this

Further, a reading of

apparently

was the

the transcript

second time

counsel was

unprepared to go forward on a matter.

think

this

that

knowledgeable

comment

member

of

provides

the

public

is not even

what

"an

would find

defense

We do not

objective,

to

be

reasonable basis for doubting the judge's impartiality."

________________

In re United States,
_____________________

(stating the

ready to

690,

695 (1st

applicable standard under 28

Simply, judicial

not

666 F.2d

expressions of vexation at

proceed on

time do

judicial bias.

-13-

not

U.S.C.

Cir.

See
___

1981)

455(a)).

lawyers who are

raise a

question of

6.

Motion for a New Trial.

______________________

In her recitation of the facts,

that the district court denied her

untimely.

argument
________

Thus,

she

However,

why we

she fails

should

has waived

motion for a new trial as

to include in

reverse the

the

defendant mentions

issue.

her brief

trial court's

A review

of

any

ruling.

the issue

nonetheless shows that this claim is meritless.

Defendant

was convicted

on May

10, 1994

and the

certificate of service of the new trial motion was dated July

6, 1994.

Fed. R.

Crim. P. 33 requires

filed within seven days after verdict.

such a motion to

be

At the hearing on the

motion,

defendant's

trial

attorney stated

that

defendant

never had asked him to file a motion for a new trial.

Judge

Boyle concluded that defendant had been confused over how one

obtains a new

asked

trial -- by a

her attorney

untimeliness

supported

of

by the

to file

the

motion

motion or an appeal

-- and had

an appeal.
______

event, the

for

evidence, means

without jurisdiction to rule

on it.

In any

new trial,

that the trial

United States
_____________

909 F.2d 561, 565 (1st Cir. 1990).

The judgment of conviction is affirmed.

________

finding

court was

v. Lema,
____

-14-